1.2.7 Unfair and Deceptive Acts and Practices (UDAP), Fraud
While the UCC, the Magnuson-Moss Warranty Act, lemon laws, and manufactured home warranty statutes provide the core consumer warranty rights, a state unfair and deceptive acts and practices (UDAP) claim is often indispensable when the consumer’s rights under those other core statutes are overly restricted by warranty disclaimers, limitations of remedies, privity requirements, the parol evidence rule, and notice requirements.46 As described in more detail in § 11.1.1, infra, UDAP statutes are state laws of general applicability that prohibit deceptive practices. Most also prohibit unfair practices, and a substantial minority prohibit unconscionable practices. They usually provide strong remedies, such as attorney fees and multiple or minimum damages, and apply to oral misrepresentations, the failure to disclose material facts, and unfair practices irrespective of any contractual disclaimers or limitations of UCC restrictions on consumer warranty rights.
This treatise, in § 11.1, infra, briefly summarizes UDAP law as it relates to warranty issues. Throughout the book, UDAP statutes are also mentioned as an alternative remedy when appropriate. For more detail on UDAP statutes, including summaries of every state’s statute, and analysis of scope, remedies, and litigation issues, see NCLC’s Unfair and Deceptive Acts and Practices.47
A fraud claim is another alternative to a UCC or Magnuson-Moss claim. Its primary benefits are its broad scope covering almost any type of transaction (as long as the elements of fraud are met) and the availability of punitive damages. Section 11.4, infra, examines various branches of the law of deceit, including negligent misrepresentation, innocent misrepresentation, and misrepresentation based on the failure to disclose.